Utah Supreme Court Says Order in Divorce Proceeding on Children's Religious Teaching Is Too Broad

Kingston v. Kingston, (UT Sup. Ct., Dec. 22, 2022), is a challenge by Ryan Kingston to a trial court's order in a divorce proceeding that barred him from encouraging his children to adopt the teachings of any religion without the consent of his former wife, Jessica. According to the Court:

At the time of their marriage, Ryan and Jessica were both members of the Order, also known as the Kingston Group, a polygamous religious community. Ryan remains a member of the Order today, but Jessica left the Order before the divorce.

During the divorce proceedings, the teachings and practices of the Order became a key issue as both Ryan and Jessica sought custody of their four children.

In a 3-2 decision, the Court remanded the case to the trial court for it to "craft a more narrowly tailored remedy." The majority said in part:

 [W]e agree with Jessica that the State has a compelling interest in shielding the children from psychological harm. The district court found that "[t]he Order's religious teachings jeopardize the health or safety of the children, and will cause harm to the children's welfare." Specifically, the court identified two potentially substantial harms to the children associated with Ryan's religious beliefs: (1) grooming of the children for early marriage; and (2) exposure to Order teachings that ostracize outsiders and demonize those who have left the group, including Jessica. Protecting the children from these harms is a compelling state interest....

The district court's prohibition is broader than necessary to prevent the identified potential harms to the children. The court prohibited Ryan from "encourag[ing] [the children] to adopt the teachings of any religion" without Jessica's consent. This prohibition applies broadly to "the teachings of any religion," but the court only identified specific harms associated with the Order. As written, the prohibition would prevent Ryan from teaching the children the Lord's Prayer or encouraging them to adopt the teachings of Islam. Based on a plain language reading of the prohibition, Ryan would have to seek Jessica's consent before engaging in either of these activities. The prohibition cannot be described as "narrowly tailored" when it reaches far beyond the compelling interest it is meant to address....

 Associate Chief Justice Pearce filed a dissenting opinion, joined by Justice Peterson.  They said in part:

[S]trict scrutiny is the wrong test to apply.... I would follow the Utah Code and analyze whether the district court found, by a preponderance of the evidence, real or substantiated potential harm to the child if the parent is allowed to participate in the child's religious upbringing.....

There is absolutely no evidence in the record that Ryan's objection to the district court's order is fueled by a desire to read the Quran to his children or to lead them in the Lord's Prayer....

... I respectfully dissent and would affirm the district court's order.

7th Circuit Dismisses Satanist's Challenge To Bigamy, Adultery and Fornication Laws

In Mayle v. State of Illinois, (7th Cir., April 23, 2020), the U.S. 7th Circuit Court of Appeals affirmed the lower court's dismissal a Satanist's challenge to Illinois' laws prohibiting bigamy, adultery, and fornication. The court said in part:

The court correctly dismissed Mayle’s challenge to Illinois’s bigamy laws on preclusion grounds, having already rejected a nearly identical challenge in his earlier federal suit.... Here the parties and issues in the bigamy challenge were identical. Likewise, the court correctly dismissed Mayle’s challenges to Illinois’s adultery and fornication laws for lack of standing. Those laws no longer are enforced, so Mayle could not show a reasonable fear of prosecution....

Two FLDS Leaders Convicted of Polygamy In Canada

AP reports that in the Canadian province of British Columbia, two leaders of the FLDS sect living in the border town of Bountiful have been sentenced by a trial court judge to house arrest after being convicted of polygamy.  61-year old Winston Blackmore, found guilty of having 24 wives, was given 6 months house arrest followed by 12 months probation and 150 hours of community service.  James Oler, who was convicted of having 5 wives, received 3 months house arrest, 12 months probation and 75 hours community service work. There are only two other convictions for polygamy in Canadian history, one in 1899 and the other in 1906.

Texas' Highest Criminal Court Upholds Law Punishing Sexual Assault By Polygamists More Harshly

In Estes v. State of Texas, (TX Ct. Crim. App., May 9, 2018), the Texas Court of Criminal Appeals, reversing the Court of Appeals, upheld the constitutionality of a Texas statute that provides higher penalties for polygamists who sexually assault their purported spouses than for other sexual assaults.  Defendant argued that the statute had the effect of treating married people more harshly than others.  The majority held that where, as here, the assault victim was a minor, it is enough that the state had a rational basis for the distinction it drew, saying in part:

[T]he Legislature could rationally conclude that to be a married man or woman is to project the kind of “stability” and “safe haven” that many children find comfort in.... And it could rationally see fit to declare that one who would enjoy this marital perception of trustworthiness will be punished all the more severely if he uses it to groom, and then sexually abuse, a child.

Judge Newell, joined by Judges Hervey and Richardson, filed a separate opinion concurring in part and dissenting in part, saying:

[W]hile I ultimately agree with the Court that the legislative classification is rationally related to a legitimate state interest, I disagree with the Court’s chosen path to that result....

The State’s interest in protecting children does not explain why a legislative distinction between married and unmarried defendants is rational. It only serves to make the State’s argument supporting that distinction look more substantial....

Ultimately, the resolution of this case turns upon the level of scrutiny we must apply in our evaluation of the statute at issue. Does strict scrutiny apply because the distinction between married and unmarried offenders significantly interferes with the fundamental right to marry? Rather than remand the case to the court of appeals to decide the issue, I would address the issue head-on. The answer is no.

Judge Alcala dissented without filing a separate opinion.

Montana's Anti-Polygamy Laws Upheld

In Collier v. Fox, (D MT, March 9, 2018), a Montana federal district court adopted a magistrate's recommendations and dismissed a challenge to Montana's civil and criminal anti-polygamy laws. When the state denied Nathan Collier a marriage license to marry a second wife, he nevertheless entered a relationship with her and they hold themselves out as being married. The magistrate's Feb. 22 opinion (full text) dismisses the challenge to the state's criminal anti-polygamy provisions because there is no genuine threat that the parties challenging the law will be prosecuted, saying:

The State Defendants have taken the position that Nathan’s and Christine’s declaration to be husband and wife, without the accompanying possession of a state-issued marriage license, is insufficient to violate the Montana bigamy statutes. Therefore, this case presents the unusual situation where the State of Montana has taken the position that the Colliers’ conduct is not criminal, while the Colliers insist that it is.

Plaintiffs also challenge the state's refusal to issue a marriage license for Collier's marriage to his second wife.  The court held that the state's anti-polygamy law is constitutional, relying on the U.S. Supreme Court's 1878 decision in Reynolds v. United States. Billings Gazette reports on the decision.

Pakistan Court Fines and Jails Husband For Polygamous Marriage Without Wife's Consent

According to Deutsche Welle, for the first time a trial court in Pakistan has sided with the woman in a polygamy case.  A trial court in Lahore sentenced Shahzad Saqib to 6 months in jail and a fine equivalent to $1900 (US) for violating Pakistan's 2015 family law that requires the exiting wife's approval for a man to take a second wife. (Background). The court rejected the husband's argument that he did not need consent because Islam permits a man to have up to four wives.

FLDS Leader Ordered To Pay $16M In Damages To Child Victim

Utah state trial court judge Keith Kelly on Tuesday ordered Warren Jeffs (who is now in prison) and the polygamous FLDS church that he heads to pay $4 million in compensatory damages and $12 million in punitive damages to Elissa Wall who, at age 14, was pressured to marry her 19 yer old cousin. As reported by the Salt Lake Tribune:

In his ruling, Kelly noted that Jeffs controlled the church and key aspects of Wall’s life. He arranged the marriage to Alan Steed over Wall’s objections and performed the ceremony. Jeffs also pressured Wall to have children with Steed. Miscarriages and a stillbirth followed.

Canadian Court Convicts 2 FLDS Leaders of Polygamy

In the Canadian province of British Columbia yesterday, a trial court found two former bishops of the FLDS Church guilty of polygamy.   The two, who were part of the FLDS colony in Bountiful, B.C., married multiple women in so-called celestial marriages.  Canadian Press reports that James Oler who was married to five women, and Winston Blackmore who was married to 25 women in celestial marriages, were convicted after an earlier 12-day. Blackmore's lawyer plans to appeal on constitutional grounds. (See prior related posting.)

Utah Legislature Passes Changes to Polygamy Ban

As reported by AP and CNN, the state legislature late last night gave last minute final passage to HB 99 (full text) amending the state's bigamy law.  It is unclear whether Gov. Gary Herbert will sign the bill.  The bill narrows the definition of bigamy, but increases the penalties if the person prosecuted is also convicted of fraud, abuse or trafficking.  The bill required purporting to marry and cohabiting where either party is already married for a person to be guilty of bigamy.  Current law requires only one of those. Reactions to the law vary.  Sponsors say the change is necessary to protect against constitutional challenges and to focus on those plural marriages which are most problematic.  Opponents say the bill will drive polygamy even further underground.

Supreme Court Denies Review In Challenge To Utah's Polygamy Laws

The U.S. Supreme Court today denied review in Brown v. Buhman, (Docket No. 16-333, cert. denied 1/23/2017). (Order List).  In the case, the U.S. 10th Circuit Court of Appeals dismissed on mootness grounds the constitutional challenge to Utah's anti-polygamy laws that had been filed by the polygamous family from the television show "Sister Wives." (See prior posting.) Salt Lake Tribune reports on the denial of certiorari.

Cert Petition Filed In "Sister Wives" Challenge To Polygamy Law

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Brown v. Buhman.  In the case, U.S. 10th Circuit Court of Appeals dismissed on mootness grounds the constitutional challenge to Utah's bigamy law that had been filed by the polygamous family from the television show "Sister Wives." (See prior posting). A federal district court had held most of Utah's plural marriage ban unconstitutional. (See prior posting.) Jonathan Turley who represents petitioners discusses the filing on his blog.

Third Canadian Special Prosecutor Can Bring Polygamy Charges Against FLDS Leader

In Blackmore v. British Columbia (Attorney General), (BC CA, June 1, 2016), the British Columbia Court of Appeal upheld the appointment of the third special prosecutor since 2007 to bring polygamy charges against FLDS Church leader Winston Blackmore who lives in Bountiful, British Columbia.  In 2011, a British Columbia court upheld most applications of Canada's anti-polygamy law. (See prior posting.) In yesterday's decision, the appeals court rejected the argument that the first special prosecutor's decision not to approve charges was final. The Province reports on the decision. [Thanks to Religion News for the lead.]

10th Circuit:Dismisses As Moot Challenge To Utah Polygamy Law

In Brown v. Buhman, (10th Cir., April 11, 2016), the U.S. 10th Circuit Court of Appeals dismissed on mootness grounds the constitutional challenge to Utah's anti-polygamy laws that had been filed by the polygamous family from the television show "Sister Wives." A federal district court had held most of Utah's ban unconstitutional. (See prior posting.) The 10th Circuit, however, concluded that a new prosecution policy announced by the County Attorney for Utah County after the suit was originally filed has mooted the case.  County Attorney Jeffrey Buhman issued a policy that states:

The Utah County Attorney’s Office will prosecute the crime of bigamy under [the Statute] in two circumstances: (1) When a victim is induced to marry through their partner’s fraud, misrepresentation or omissions; or (2) When a person purports to marry or cohabits with another person in violation of [the Statute] and is also engaged in some type of abuse, violence or fraud. This office will prosecute the crime of child bigamy under Section 76-7-101.5 regardless of whether one of the parties is also engaged in some type of abuse, violence or fraud.

Further supporting the finding of mootness is the fact that the Brown family has moved to Nevada. AP reports on the court's decision.  Jonathan Turley, counsel for the Brown family, said in a posting that the decision will be appealed.  [Thanks to Tom Rutledge for the lead.]

10th Circuit Hears Oral Arguments In "Sister Wives" Challenge To Utah Polygamy Ban

The U.S. 10th Circuit Court of Appeals yesterday heard oral arguments in Brown v. Buhman, a case in which a Utah federal district judge struck down most of Utah's statute banning polygamy. (See prior posting.)  While the 10th Circuit does not post recordings of oral arguments, AP reported on the arguments.  Plaintiffs in the case are the polygamous family featured on the TLC reality series "Sister Wives,"

Magistrate Holds Plaintiffs Lack Standing To Challenge Montana's Polygamy Ban

In Collier v. Fox, (D MT, Dec. 8, 2015), a Montana federal magistrate judge recommended dismissing a lawsuit asserting a pre-enforcement challenge to the state's bigamy statutes.  The suit was filed after a county clerk refused to issue a marriage license for Christine Collier Parkinson to legally marry Nathan Collier who is already legally married to Victoria Collier.  In the letter denying the license, the county clerk told the applicants that  obtaining a second marriage license would be considered bigamy.  However the letter did not explicitly threaten prosecution.  The court concluded that plaintiffs lack standing to bring the challenge because they have not been threatened with prosecution.  Plaintiffs say that the state might use its common law marriage statute to claim that the plaintiffs are already in violation.  The court said, however, that there is no history of prosecution of polygamists under this theory. Life Site News reports on the decision.

Suit Challenges Montana's Ban on Polygamy

According to MTN News, a federal court lawsuit was filed yesterday challenging Montana's  ban on polygamous marriages.  Nathan and Vicki Collier were legally married in 2000.  Nathan is now seeking a marriage license to legally marry Christine Parkinson who has also been living as his wife in a polygamous relationship.  The family has a total of eight children.  In July, the Yellowstone County clerk's office denied Nathan a marriage license and asked the county attorney's office for legal advice.  In a letter, the Deputy County Attorney said that the U.S. Supreme Court's same-sex marriage decision does not extend to protect polygamous marriages.  Nathan, Vicki and Christine all filed the lawsuit, representing themselves, arguing that their consensual plural family association is protected by the equal protection, free exercise,  and establishment  clause as well as by the 1st Amendment's protection of speech and association. Montana's bigamy statute imposes a fine of $500 and imprisonment up to 6 months on those convicted.

Brief In Polygamy Appeal Garners Attention

In 2013 in Brown v. Buhman, a Utah federal district court  struck down much of Utah's statute which criminalizes polygamy.  The decision limits the statute's applicability to cases in which an individual has multiple marriage licences, concluding that the statute's broader ban on cohabiting while married to another person is unconstitutional. (See prior posting.) The state of Utah filed an appeal with the 10th Circuit in September 2014.  Yesterday, appellees filed their brief with the 10th Circuit. It is gaining particular attention (as in this Fox 13 piece) because of (1) the celebrity status of appellees -- the polygamous family that is the subject of the popular reality television series "The Sister Wives; (2) the high profile counsel who filed the brief-- law professor and frequent legal commentator Jonathan Turley; and (3) the Supreme Court's same-sex marriage decision which was handed down subsequent to the district court's ruling on the anti-polygamy statute.  Some opponents of same-sex marriage argued that its legalization would create a "slippery slope" toward other marital arrangements.  The Supreme Court's Obergefell decision is cited extensively in the brief, but appellees emphasize: "This case is about the criminalization, not recognition, of plural relationships."  The full brief may be read here.

Burma's Parliament Passes Controversial Religious Conversion and Monogamy Laws

According to Human Rights Watch, on Aug. 21 Burma's joint parliament passed two bills that violate human rights and threaten to entrench religious discrimination.  The Religious Conversion Bill will require anyone wishing to change religion to be over 18, and then to file an application with a local Religious Conversion Scrutinization and Registration Board.  It is feared that many local boards will be dominated by ethnic Buddhists who will be biased against conversion to other faiths. The second bill, the Monogamy Bill, is seen as targeting religious minorities that practice polygamy. These two laws, along with the Population Control Law which became law in May, and the Interfaith Marriage Law, passed in July but not yet signed into law, were promoted by the Association for Protection of Race and Religion ("Ma Ba Tha"), an organization of Buddhist monks with an anti-Muslim and ultra-nationalist agenda. Human Rights Watch urges Burma's President Thein Sein to refuse to sign the two newly-passed bills.

The U.S. Commission on International Religious Freedom also issued a statement this week condemning Burma's Religious Conversion Bill.

Inspired By Supreme Court Decision, Montanans Apply For License For Polygamous Marriage

AP reported yesterday that in Billings,. Montana, a man and his two wives, citing the Supreme Court's Obergefell decision, have applied for marriage licenses to legitimize their polygamous marriage. The man, Nathan Collier, a former Mormon who was excommunicated for polygamy, said: "It's about marriage equality, You can't have this without polygamy." Officials in the Yellowstone County clerk's office are consulting with the county attorney's office before giving a final answer.  The county's chief civil litigator says that his research so far shows that  "the law simply doesn't provide for that yet." [Thanks to How Appealing for the lead.]

India Supreme Court Upholds State Work Rule Barring Polygamy

In Khan v. State of U.P., (India Sup. Ct., Feb.9, 2015), a 2-judge bench of the Supreme Court of India upheld the constitutionality of a rule of the government of the state of Uttar Pradesh barring employees from having more than one wife.  The court held that while Muslim personal law may permit up to four wives, the rule does not violate the provision of Art. 25 of India's Constitution that protects the right to freely profess, practice and propagate religion. Quoting from an earlier decision, the Court said:

What is permitted or not prohibited by a religion does not become a religious practice or a positive tenet of a religion.... Assuming the practice of having more wives than one... is a practice followed by any community or group of people, the same can be regulated or prohibited by legislation in the interest of public order, morality and health or by any law providing for social welfare and reform which the impugned legislation clearly does.

The Economic Times reports on the decision.